Dennis Clark v. Shade Tree Service Co

April 15, 2011

DENNIS CLARK, PLAINTIFF,v.SHADE TREE SERVICE CO., DEFENDANT.

The opinion of the court was delivered by: J. Phil Gilbert District Judge

MEMORANDUM AND ORDER

This matter comes before the Court on defendant Shade Tree Service Company's ("Shade Tree") motion for summary judgment (Doc. 27). Plaintiff Dennis Clark has responded to the motion (Doc. 32), and Shade Tree has replied to that response (Doc. 33).

I. Summary Judgment Standard

Summary judgment is appropriate where "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Spath v. Hayes Wheels Int'l-Ind., Inc., 211 F.3d 392, 396 (7th Cir. 2000). The reviewing court must construe the evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in favor of that party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Chelios v. Heavener, 520 F.3d 678, 685 (7th Cir. 2008); Spath, 211 F.3d at 396.This standard is applied with special scrutiny in cases, such as employment discrimination cases, that often turn on issues of intent and credibility. Michas v. Health Cost Controls of Ill., Inc., 209 F.3d 687, 692 (7th Cir. 2000). Where the moving party fails to meet its strict burden of proof, a court cannot enter summary judgment for the moving party even if the opposing party fails to present relevant evidence in response to the motion. Cooper v. Lane, 969 F.2d 368, 371 (7th Cir. 1992).

In responding to a summary judgment motion, the nonmoving party may not simply rest upon the allegations contained in the pleadings but must present specific facts to show that a genuine issue of material fact exists. Fed. R. Civ. P. 56(e)(2); Celotex, 477 U.S. at 322-26; Johnson v. City of Fort Wayne, 91 F.3d 922, 931 (7th Cir. 1996). A genuine issue of material fact is not demonstrated by the mere existence of "some alleged factual dispute between the parties," Anderson, 477 U.S. at 247, or by "some metaphysical doubt as to the material facts," Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); Michas, 209 F.3d at 692. Rather, a genuine issue of material fact exists only if "a fair-minded jury could return a verdict for the [nonmoving party] on the evidence presented." Anderson, 477 U.S. at 252; accord Michas, 209 F.3d at 692.

II. Facts

Viewed in the light most favorable to Clark, the evidence establishes the following relevant facts.*fn1 Clark began working for Shade Tree as a tree trimmer in October 1999. That job involved operating heavy equipment, climbing trees and ladders, using a chainsaw, operating near high-voltage power lines and driving trucks and other heavy vehicles. Clark was a good worker, and in 2002 he was promoted to foreman of a two-person work team.

In the summer of 2007, Clark accidentally cut himself with a chain saw while at work. He filed a workers' compensation claim, and all his medical bills for that injury were paid. There is no evidence Shade Tree took any adverse action against Clark for filing a claim, although two supervisors had indicated earlier to Clark that Shade Tree did not allow workers who filed workers' compensation claims to return to work.

A few months later, on August 23, 2007, an extremely hot day, while driving a truck for Shade Tree, Clark blacked out and wrecked the truck. He regained consciousness shortly after the wreck, refused medical treatment at the scene of the accident and said he felt fine. That same day, Shade Tree's performance manager, Kurt Elsesser, discussed the situation with Shade Tree's director of operations, Jeffrey Baker, who decided that Clark would not be allowed to return to work until he provided a doctor's written assurance that he would not continue to lose consciousness at work. This instruction was pursuant to a safety policy Shade Tree had adopted in 2004 after another employee had blacked out at work. Later that day, Elsesser told Clark he would not be allowed to return to work until he got a check-up from a doctor and got a clean bill of health.

On August 27, 2007, Clark saw Dr. Kenneth Retter, a cardiologist. In a note dated September 10, 2007, that was faxed to Shade Tree, Dr. Retter indicated he had diagnosed Clark with syncopal episodes over a four-year period due to overheating and dehydration. The note further indicated Clark could return to work September 28, 2007. Baker did not find the note sufficient to allow Clark back to work.

On September 10, 2007, while Clark was still off work, he completed a workers' compensation claim form seeking benefits for a cardiovascular injury. The following day Clark's counsel sent a copy of the application for workers' compensation benefits to Shade Tree. No evidence suggests Baker got notice of the claim at this time.

On September 19, 2007, Clark saw Dr. Teppen, an internal medicine specialist. Dr. Teppen also found Clark fit to return to work as long as he kept hydrated. He instructed Clark to lie down if he started feeling lightheaded or dizzy. It is unclear from the record what documentation, if any, Shade Tree received from Dr. Teppen.

On September 27, 2007, Clark saw Dr. Lee, a neurologist, who did not believe Clark's syncopal attacks were due to epilepsy. Clark did not provide Shade Tree with a report from Dr. Lee.

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